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July 2013

Can I use information from my husband's cellphone in my RI divorce?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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QUESTION:  My husband left his cell phone (which I pay for and is in my name) open and logged into Facebook. I looked at his phone and saw and recorded (through screen shots) a conversation he was having with another individual. In this conversation, he spoke candidly about matters for which I am currently divorcing him. Can I use this documented conversation in a legal setting or is it inadmissible?


ANSWER
:
 As any good family law lawyer would (or should) tell you, it depends upon how you present it and which family court judge you have. Technically under the Rules of Evidence it is, at first glance, hearsay and therefore on its face could be considered inadmissible if a judge didn't look deeper and you didn't give a reason for the judge to find it to be admissible.

Generally, you want to find a way to get the records in as an exception to hearsay, or you want to get them in as a business record from your cellphone company.

It's a bit harder than it sounds.  If I were to stick to basics, you could subpoena the records from your Facebook Phone cellphone company and have them certify them or have a person known as the Keeper of the Records appear to testify that they are authentic records.  Then you simply need to have some questions to show the court why the records are relevant in the case and something the judge should hear.  This is a very basic description but essentially that is what it breaks down to in its fundamental elements.

The other way is to find an exception to the hearsay rule.  So you have an out of court statement like the digital conversation that is important to your case somehow and you want the judge to be able to hear it and consider it.  You cannot offer the statement directly to the court to try to prove that what is done or said by the statement is true.  (Actions, statements, and even omissions can be considered statements by the court.)

If you believe your husband is having an affair because of the digital conversation and it has made you a nervous wreck and forced you to get counseling and because of that you think you deserve a greater share of the assets then you can show that they made calls back and forth by the calling records, texting records and yes the digital conversation.  You are not trying to prove that what your husband said in the digital conversation is true.  You are then offering the digital conversation to show that your husband and the woman were communicating frequently in a variety of ways.  It doesn't matter if the conversation says that he is going to meet the woman after work at the Motel 6.  You aren't offering it to prove that they actually did that.  You are offering it to show how frequently they were communicating.  There you go.  It is no longer for its truth, it's offered to show they communicated frequently and that's why you became a nervous wreck.

There are other exceptions but those are another day.

To answer your question.  Yes, if the digital Facebook conversation is important enough and it is relevant to your legal proceedings then you can find a way to make the conversation admissible.  Whether the judge accepts the way you came up with is another story entirely.


My Husband Moved Out So Aren't I Entitled to My Privacy from going through my Things?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

Google+ Author Profile

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Question: 

I am separated from my husband. He moved out. He now comes and goes freely through our home, searching through drawers, taking things he wants or needs. He walked in the bathroom while I was in the shower the other day. His reasoning - he pays for the house - he can come and go as he pleases. I can't afford a lawyer. What rights do I have? I am entitled to some privacy aren't I? I live in RI.

Reply: 

You have two questions here.  

Answering the question "What rights do I have?" would require a lot more information and hours of typing. This is because your rights in this type of situation are like a long trail of dominos with many branches and sub-branches. Therefore, I will answer your second question.

"I am entitled to some privacy, aren't I?"  I agree that it isn't appropriate for your husband to be going through your drawers, etc.... if he has moved out of the house.  

Man_looking_thru_drawerIf his name is on the deed to the home and you do not have any court order requiring him to stay out of the marital home, then technically you are not "entitled" to privacy at the house since he is an owner. That is to say, you do not technically have a right to privacy in the house. Even if you were to lock him out, a person cannot be charged with anything if they break into their own house. Without an existing divorce or separation proceeding in motion with orders that may prohibit him from entering the home if he has a place of his own to live, he can come and go as he pleases and go through drawers of what might be considered marital dressers with marital possessions in them.

At this time, if only your name is on the deed, you have the legal right to change the locks because property law would say that you own the house at this juncture.  Therefore, if your husband were to break-in and go through your things you could call the police and have him arrested.  Keep in mind that just like getting a court order to keep your husband out of the house to give you some privacy, this could give rise to serious reprecussions if you don't think things out and a divorce or separation proceeding is filed or even if it isn't filed and your husband has control of things that could adversely affect you.  Read on and you will understand.  It has to do with what a man might do when he is angry.  The same concept applies when a woman is angry, something that is commonly referred to as a "woman's scorn." 

I'm sure this is not the answer you are looking for, but it is possible to move forward with an action in court to give you the right to privacy in the house where you live. Just keep in mind what repercussions might flow from getting an order keeping him out of the house. For example, if your husband pays for the house and he is angry at the actions you take then (1) he might stop paying or, if your husband provides you with money for food or with health insurance or auto insurance then he might stop contributing money for you to survive on or he might remove you from the health or auto insurance. These are only a few of the things that could happen. You need to always consider what could go wrong or what consequences might follow from any action you take. Please know that this answer is not a substitute for legal advice provided by an attorney who has met with you at length and has had the opportunity to advise you of all the likely things that might occur after he or she has been fully informed of your circumstances, your background, your options, and how you wish to proceed.

I know personally that these matters can be very annoying, scary and challenging.  I wish you all the best in dealing with this difficult situation.